Around the Web This Week

Here are some news stories involving law and religion from this past week:

If you read only one amicus brief in the Hobby Lobby case…

Read this brief authored by Douglas Laycock on behalf of the Christian Legal Society and several other groups. Professor Laycock was right in the center of the legislative debates over the meaning of RFRA in the 1990s. In exploring the meaning of RFRA and its application, the brief describes those debates in very helpful detail, and it also discusses the legislative history of the Religious Liberty Protection Act, a statute that was in the offing (but ultimately was never passed, though portions of it made their way into the Religious Land Use and Institutionalized Persons Act, and portions were used to strengthen RFRA) after the Supreme Court struck down RFRA as applied against the states as in excess of Congress’s enforcement powers under section 5 of the 14th Amendment. Laycock demonstrates that Congress clearly intended RFRA (as well as RLPA) to apply to for-profit corporations, and reflected that intention in the words of the statute. There were many special interests that desired exemptions from RFRA. Those exemptions were rejected.

The Hobby Lobby and Conestoga Wood cases are, at bottom and after the swirling political fog is blown away, about the meaning of a statute. Professor Laycock’s brief is an important contribution in ascertaining that meaning. Here is the summary of the argument:

The Religious Freedom Restoration Act provides universal coverage. It applies to “all” federal law and to “all” cases where the free exercise of religion is substantially burdened.

The legislative history confirms the universality of the statutory text. The sponsors resisted all efforts to add exceptions to coverage. A definition in an early version of the bill, limiting coverage to “natural persons” and religious organizations, was eliminated in all later drafts.

After this Court invalidated RFRA as applied to the states, Congress sought to re-enact RFRA’s standard, in substantively identical language, for application to cases that could be reached under the Commerce and Spending Clauses. The debates on this bill, the Religious Liberty Protection Act (RLPA), reveal the public meaning of the nearly identical language in RFRA. The RLPA debate is highly probative because it was a serious fight on a live issue. It was not in any sense an attempt to make post enactment legislative history about RFRA, but it clearly demonstrates the public meaning of RFRA’s language.

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House Subcommittee Hearing on Human Rights Abuses in Egypt (Oct. 1)

As readers of this site know, the situation for Copts and other Christians in Egypt is truly dire. On October 1, the House of Representatives Subcommittee on Africa, Global Health, Global Human Rights and International Organizations will hold a hearing on the situation. Speakers include Bishop Angaelos of the Coptic Church, author Samuel Tadros, and Rutgers Professor Morad Abou-Sabe. The hearing will be webcast live. Details are here.

Waltman, “Congress, the Supreme Court, and Religious Liberty”

This June, Palgrave MacMillan will publish Congress, the Supreme Court, and Religious Liberty: The Case of City of Boerne v. Flores by Jerold Waltman (Baylor University).  The publisher’s description follows.Waltman

In the landmark case City of Boerne v. Flores, the Supreme Court struck down a major federal statute – the Religious Freedom Restoration Act of 1993. This decision raised questions not only about religious freedom in America, but also about federalism and separation of powers. Using the narrative framework of a tense dispute that divided a small Texas town, Waltman offers the first book-length analysis of the constitutional jurisprudence involved in the passage of the act. Congress, the Supreme Court, and Religious Liberty shows how this case and others like it stimulated and advanced an intense legal debate still ongoing today: Can and should the Supreme Court be the exclusive interpreter of the Constitution?

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